IMTEYAZ AHMED KHAN, MUMBAI V. DCIT CIR - 1, KALYAN

ITA 2261/MUM/2012

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3559 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 08-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 04-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Retraction
• Section: 133A; 6; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI I BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NO. 2261/MUM/2012 (ASSESSMENT YEAR:2008-09) IMTEYAZ AHMED KHAN MOHAN PLAZA, 1 ST FLOOR, VHILEY NAGAR, KALYAN (W) APPELLAN T VS. DCIT, CIR-1, KALYAN, RESPONDENT PAN: AKEPK3159L /BY APPELLANT : NONE /BY RESPONDENT : SHRI JAVED AKHTAR, D.R. /DATE OF HEARING : 20.06.2016 /DATE OF PRONOUNCEMENT : 28.06.2016 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-I, THANE, D ATED 25.01.2012 FOR A.Y. 2008-09 ON FOLLOWING GROUND: THE LEARNED CITA (I) THANE, HAS UPHELD THE ORDER O F LOWER AUTHORITY & CONFIRMED THE ADDITION U/S.68 OF RS.30,00,000/- NOT PROPER. ITA NO.2261/MUM/12 A.Y. 08-09 [IMTEYAZ AHMED KHAN V S. DCIT] PAGE 2 2. IN THIS CASE, SURVEY U/S.133A OF THE ACT WAS CAR RIED OUT AND CERTAIN INCRIMINATING DOCUMENTS WERE FOUND. TH E STATEMENT OF SHRI IMTEYAZ AHMED B KHAN WAS RECORDED IN RESPECT OF VARIOUS DISCREPANCIES AND INCRIMINATING MATERIAL FOUND DURING SURVEY. ASSESSEE DISCLOSED AN AMOUNT OF RS.80,00,000/- AS UNDISCLOSED/UNACCOUNTED INCOME AN D AGREED TO PAY THE TAXES THEREON. HOWEVER, SUBSEQUE NTLY, HE FILED AN AFFIDAVIT ADMITTING INCOME OF RS.50,00,000 /- ONLY IN THE NAME OF VARIOUS FAMILY PERSONS AND FILED THE RE TURN OF INCOME ACCORDINGLY. THE INCOME DISCLOSED IS AS UND ER: NAME STOCK MACHINERY ADV. FOR SHED TOTAL IMTEYAZ AHMED BADRUDDIN KHAN (MYSELF) 5,00,000 4,84,000 - 09,84,000 NOORJAHAN IMTEYAZ KHAN (WIFE) 4,50,000 4,56, 000 - 09,06,000 AKMAL IMTEYAZ KHAN (SON) 10,00,000 4,60,000 1,50,000 16,10,000 AJMAL IMTEYAZ KHAN (SON) 10,00,000 4,60,000 1,00,000 15,00,000 TOTAL 29,50,000 18,00,000 2,50,000 50,00,000 SINCE INCOME DISCLOSED WAS LESS BY RS 30,00,000/-, ASSESSING OFFICER REQUIRED THE ASSESSEE TO EXPLAIN THE SAME AND ALSO EXPLAIN AS TO WHY THE ADDITION OF RS 30,00 ,000/- BE NOT MADE. IN THIS REGARD, ASSESSEE SUBMITTED THAT DURING THE COURSE OF SURVEY, DUE TO PRESSURE OF CIRCUMSTANCES AND CONFUSION, HE HAD GIVEN A STATEMENT OF UNDISCLOSED INCOME OF RS.80,00,000/- OVER & ABOVE TO THE REGULAR INCOME B UT NEXT DAY, WHEN HE THOUGHT WITH FRESH MIND, HE FOUND THAT WHATEVER WAS ACCEPTED AT THE TIME OF SURVEY WAS ONL Y DUE TO CONFUSION / STRESSFUL MIND AND WRONG CALCULATION. HE FURTHER ITA NO.2261/MUM/12 A.Y. 08-09 [IMTEYAZ AHMED KHAN V S. DCIT] PAGE 3 SUBMITTED THAT HIS INCOME INCLUDING THE INCOME OF F AMILY MEMBERS WORKED OUT TO RS 50,00,000/- ONLY OVER & AB OVE THE REGULAR INCOME. THE EXPLANATION OF ASSESSEE WAS NOT FOUND SATISFACTORY BY THE ASSESSING OFFICER AND HE OBSERV ED THAT ASSESSEE INDIRECTLY RETRACTED THE ADDITION OF RS.30 ,00,000/- OUT OF THE ADMITTED UNACCOUNTED INCOME. ASSESSING OFFICER MENTIONED THAT STATEMENT U/S.133A WAS RECORDED VOLU NTARILY AND WITHOUT ANY COERCION, THREAT OR DURESS. THE STA TEMENT WAS RECORDED AFTER A LENGTH OF TIME DURING WHICH VA RIOUS INCRIMINATING DOCUMENTS EVIDENCES AND DISCREPANCIES FOUND WERE CONFRONTED WITH THE ASSESSEE. ONLY AFTER CONF RONTATION OF VARIOUS DISCREPANCIES AND INCRIMINATING MATERIAL S, ASSESSEE ADMITTED RS.80,00,000/- AS UNACCOUNTED INC OME WHICH CANNOT BE SAID THAT THE DISCLOSURE WAS MADE D UE TO CONFUSION AND STRESSFUL MIND. ACCORDINGLY, ADDITIO N WAS MADE AND SAME WAS CONFIRMED BY CIT(A). 3. BEFORE US THROUGH WRITTEN SUBMISSION, ASSESSEE SUBMITTED THAT ADDITION IN QUESTION SHOULD BE DELET ED AND ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE SUP PORTED THE ORDERS OF AUTHORITIES BELOW. 4. AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATERI AL ON RECORD. WE FIND THAT ASSESSEE AND HIS FAMILY MEMBE RS WERE RUNNING THE BUSINESS OF POWER LOOMS AT BHIWANDI. A S STATED ABOVE, DEPARTMENT HAVE TAKEN THE ACTION U/S. 133A O F ACT AND ASSESSEE MADE A DECLARATION OF INCOME AT RS. 80,00,000/- OVER AND ABOVE THEIR REGULAR INCOME. T HE ITA NO.2261/MUM/12 A.Y. 08-09 [IMTEYAZ AHMED KHAN V S. DCIT] PAGE 4 ALLEGED ADDITION HAS BEEN MADE ON THE BASIS OF LOOS E PAPER, DIARIES ETC., WHICH WAS NOT PROVIDED TO ASSESSEE. THE STAND OF ASSESSEE HAS BEEN THAT AFTER SURVEY, ASSESSEE FI LED AFFIDAVIT BEFORE THE ASSESSING OFFICER MODIFYING HIS DECLARAT ION RESTRICTED TO RS. 50,00,000/- INSPITE OF RS.80,00,0 00/-. IT IS UNDISPUTED FACT THAT ASSESSEE HAS HONORED HIS DISCL OSURE OF RS.50,00,000/- OUT OF RS.80,00,000/- AND TAX THEREO N HAS BEEN PAID. ASSESSEE HAS TRIED TO MODIFY HIS STATEM ENT DECLARING NOT RETRACT THE SAME. 4.1 REGARDING ADDITION OF RS.18,88,182/- OUT OF RS.30,00,000/-, CHEQUES HAD NOT BEEN DEPOSITED IN B ANK. ASSESSING OFFICER HAD OPTION TO CALL UPON THE CONCE RNED PERSON AND RECORD THE STATEMENT OF THEM THAT NO CAS H HAD BEEN GIVEN TO ASSESSEE, ASSESSEE DECLINED SUCH CASH PAYMENT RECEIVED FROM THEM. REGARDING ITS ASSERTION OF ASS ESSEE HAS NOT BEEN LOOKED IN THE LIGHT OF HIS DEPOSIT AND PAR TIAL RETRACTION WHICH IS NOT JUSTIFIED. 4.2 REGARDING ADDITION OF RS.11,65,500/-, THE STAND OF ASSESSEE HAS BEEN THAT THERE WAS AGREEMENT FOR PURC HASES OF PLOT AND SHED. ASSESSEE PURCHASED THE SAID PLOT ON BEHALF OF THOSE PERSONS AND BUILD UP THE SHED THROUGH HIM OR THROUGH BUILDER FOR THEM AND MONEY BEING SUPPLIED FROM THOS E PARTIES FOR THE PURPOSE TO BUILD UP POWER LOOM. S UCH MONEY BEING SUPPLIED BY THEM BEING NEAREST RELATIVE OF TH EM FOR THEIR FUTURE ACTIVITY. IN THIS SITUATION, ADDITION IN HAND OF ASSESSEE WAS NOT JUSTIFIED. CLARIFICATION AS DEPOS ED BY ITA NO.2261/MUM/12 A.Y. 08-09 [IMTEYAZ AHMED KHAN V S. DCIT] PAGE 5 ASSESSEE IN ITS AFFIDAVIT, WHICH IS NOT IN DISPUTE. THE CONTENTS OF AFFIDAVIT SHOULD NOT BE REJECTED WITHOU T CONFRONTING THE CONTENT OF SAME TO DEPONENT WHICH H AS NOT BEEN DONE IN THIS CASE. IT IS ALSO NOT IN DISPUTE THAT ASSESSEE HAS HONOURED HIS DECLARATION TO THE EXTENT OF RS.50 ,00,000/- AND PAID TAX THEREON. ASSESSEE HAS CLARIFIED ITS S TAND WITH REGARDS TO RETRACTION AS DISCUSSED ABOVE. IT IS SE TTLED LAW THAT ASSESSEE CAN RETRACT FROM DECLARATION PARTIALL Y OR COMPLETELY BY GIVEN COGENT REASONING FOR SAME. COG ENT REASONING FOR PARTIAL RETRACTION HAS BEEN APPROVED BY US. TAKING ALL FACTS AND CIRCUMSTANCES INTO CONSIDERATI ON INCLUDING OWNER OF RS.50,00,000/- OUT OF RS.80,00,0 00/- DISCLOSURE, ADDITION OF RS.30,00,000/- IS DIRECTED TO BE DELETED AS DISCUSSED ABOVE. 5. AS A RESULT, APPEAL FILED BY ASSESSEE IS ALLOWED . PRONOUNCED IN THE OPEN COURT ON THIS THE 28 TH DAY OF JUNE, 2016. SD/- SD/- ( RAJESH KUMAR ) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R MUMBAI: DATED 28/06/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. %&%'( ) / CONCERNED CIT 4. )- / CIT (A) 5.-./00'(, '( , %& / ITA NO.2261/MUM/12 A.Y. 08-09 [IMTEYAZ AHMED KHAN V S. DCIT] PAGE 6 DR, ITAT, MUMBAI 6./4567 / GUARD FILE. BY ORDER / , / % , '( , %&